Per S.N. Jha, CJ. (Oral):

A short but significant question of law- whether unauthorized absence of an employee beyond the period prescribed under the rules results in automatic cessation of employment ? - arises for consideration in this Letters Patent Appeal. The question is not res integra. However, in view of the stand taken on behalf of the State, we consider it appropriate to record a brief order clarifying position in law.

2. Facts of the case may be stated first. The appellant was initially appointed as an Orderly in the Forest Department. He was later promoted to the post of Forest Guard which post he claims to be holding on substantive basis at the relevant time. In December, 1991, he professedly proceeded on one months leave. According to the appellant, he went on leave because his uncle had been killed by some unidentified assailants and he apprehended threat to his life. He stayed away from his job until 26th February, 2000 when he reported for duty. His joining was accepted by Range Officer, Doabagh. On 28th February, 2000, Divisional Forest Officer, Baramulla, informed the Range Officer that the entry in the receipt register, meaning thereby the joining of the appellant, had been struck off as he was absconding from duty since 1992 and asked him (Range Officer) to get an explanation from the appellant as to how he was interfering in the business of the office. On 27th May, 2000, the appellant was informed by the Range Officer, Headquarters, J.V.Division, Baramulla that, as per CSR (Civil Service Regulations) he no longer existed on the rolls of the Department and, therefore, the question of his resuming the duties did not arise.

3. The appellant approached this Court by way of writ petition, SWP No. 613/2001, for quashing the aforesaid communications dated 28th February, 2000 and 27th May, 2000 and seeking suitable mandamus for acceptance of his joining etc. He also sought interim relief. An interim order was passed on 22nd February, 2002 to effect that if the appellant had been removed from service or placed under suspension, he may be permitted to join against the post. In course of time, when the case came up for admission on 16th April, 2004, the learned Single Judge, while admitting the writ petition, vacated the interim order, directing that the writ petition will be heard in due course. The appellant has approached this Division Bench against said order dated 16th April, 2004.

Inasmuch as the writ petition is pending, in ordinary course, this Court would not have entertained this appeal, muchless gone into the question involved. But considering that any order - this way or that way - would take us into the gamut of the dispute, with the consent of the counsel for the parties, we heard the case on merit. We were also given to understand that the question aforesaid is involved in many cases, and the decision by this Court would facilitate disposal of such cases and also serve as guidance to the authorities.

4. We have referred to above the substance of orders dated 28th February, 2000 and 27th May, 2000. It would be appropriate to quote verbatim the relevant part of the latter order as under:

"Question of allowing you to resume duties doesnt arise at all as per CSR since you no longer exist on the annual establishment rolls of this Department since 1992. Your application for arrival on 26-02-2000, has been rejected formally vide this Office No. 2661-62/Estt dated 28-02-2000."

A bare reading makes It clear that the respondent authorities are of the view that on account of the appellants continued absence from duty his employment came to an end in 1992 itself. In course of hearing, we observed that unauthorized absence from duty is a misconduct for which the delinquent is liable to suitable action but there cannot be a deemed termination of employment without being given opportunity of hearing to him. Learned Advocate General, in response, fairly agreed that there cannot be automatic termination of service of an empl

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